Steadman v. Lake Hills
Decision Date | 27 October 1967 |
Docket Number | No. 10779,10779 |
Citation | 20 Utah 2d 61,433 P.2d 1 |
Parties | d 61 Donald L. STEADMAN and Donna B. Steadman, his wife, and Norma E. Steadman, Plaintiffs and Respondents, v. LAKE HILLS, a corporation, and M. M. Merrill, and Lester M. Johnson and Johnson Enterprises, Inc., successors in interest, Defendants and Appellants. |
Court | Utah Supreme Court |
Herschel J. Saperstein, Ralph J. Marsh, Backman, Backman & Clark, Salt Lake City, for appellants.
Parsons, Behle, Evans & Latimer, Stewart M. Hanson, Jr., Salt Lake City, for respondents.
This action was commenced by the plaintiffs to foreclose a mortgage. From a judgment awarding attorney's fees to the plaintiffs, the defendants appeal to this court. The judgment is affirmed.
On April 15, 1954, the defendant Lake Hills, a corporation, made and executed a promissory note payable to the plaintiffs. The note was secured by a mortgage of even date in the sum of $142,000. The note and mortgage provided for installments of $15,800, payable on the 15th day of April of each year thereafter. By the terms of the note and mortgage the defendant Lake Hills agreed to pay a reasonable attorney's fee in the event of default or of foreclosure. At about the same time the above named defendant also executed a deed which was deposited with Walker Bank & Trust Company, as escrow agent. The escrow agreement provided that upon failure of the buyer to pay any installment when due, or within 30 days thereafter, the deed would be delivered to the seller upon demand.
The defendant Lake Hills failed to make payment of the installment due on April 15, 1961. At that time the defendant had also failed to pay the taxes for the years 1955 through 1961. On April 20, 1961, the plaintiff elected to commence foreclosure proceedings. The matter proceeded to trial on December 7, 1961, and on December 15, 1961, the lower court entered a minute order which provided as follows:
* * * finds that upon receipt by the Plaintiff of the check in the amount of Fifteen Thousand Eight Hundred Dollars ($15,800.00) now held in trust, the Court orders judgment entered in favor of the Defendants and each of them as 'no cause for action.' The Court further orders said check be delivered within thirty (30) days.
The court failed to enter findings of fact, conclusions of law or a decree based upon the minute entry. Proposed findings and conclusions were submitted to the court by counsel. At a time subsequent to the trial and the entry of the minute order above mentioned the defendant Lake Hills filed a petition in voluntary bankruptcy and as a result of those proceedings on September 10, 1964, Lester M. Johnson and Johnson Enterprises, Inc., succeeded to the interests of Lake Hills. Thereafter the successors in interest made installment payments due under the note and mortgage. Prior to the last installment payment the plaintiffs filed an amended and supplemental complaint setting up their claim for attorney's fees.
On April 15, 1966, pursuant to a stipulation of the parties, it was agreed the case would be dismissed with prejudice, reserving only the issues as to what attorney's fees, if any, were to be paid to the plaintiffs. The defendants had deposited with the court the sum of $5,000 to abide the order of the court in respect to said fees.
The issue of attorney's fees came on for trial on September 23, 1966, before a judge other than the one who had heard the matter in December, 1961. The court found that the plaintiffs were entitled to attorney's fees and awarded the sum of...
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